CORRECTION CORRECTING OR
OF A SENTENCE (a) Correction of Sentence.
(1) Illegal Sentence. The sentencing court may correct an illegal sentence at any
may correct a sentence imposed in an illegal manner within the time provided
herein for the
reduction of sentence in Rule 35(b)(1).
(2) Clear Error. After giving any notice it considers appropriate, the sentencing court may correct a sentence that resulted from arithmetical, technical, or other clear error.
(b) Reduction of Sentence.
(1) Time for Reduction. The sentencing court may reduce a sentence:
(A) within 120 days after the court imposes sentence
imposed or revokes probation is
(B) within 120 days after
receipt by that court of a the court
receives the mandate issued
upon affirmance of the judgment or dismissal of the appeal ,; or
(C) within 120 days after
entry of the Supreme Court of the
United States enters any order
or judgment of the Supreme Court of the United States denying review of, or
effect of upholding a judgment of conviction or probation revocation.
(2) Motion for Reduction.
Changing a sentence from a sentence of
incarceration to a grant
of probation constitutes a permissible reduction of sentence under this subdivision. Relief
under this rule may be granted by On a party's motion or on its own, and with
notice to the
parties, the court only upon motion of a party or its own motion and notice to the
grant a sentence reduction. Changing a sentence from a sentence of incarceration to a
of probation is a permissible sentence reduction. If the sentencing court grants relief
this rule a sentence reduction, it shall must state its
reasons therefor for the reduction in
Rule 35 was amended, effective January 1, 1979; September 1, 1983; March 1, 1986; March 1, 2006.
Rule 35 is derived from Fed.R.Crim.P. 35. One modification in language is the addition of the word "sentencing" to modify court. This clarifies that only the court which rendered judgment may correct an illegal sentence.
Rule rule encompasses two forms of relief: reduction of
sentence, and correction of
sentence either illegal in form or manner of imposition or given in
error. In either instance
Under the rule: (1) it is presupposed that the conviction upon which the sentence has
imposed is valid; (2) the court is empowered to act on its own motion; and (3) the
court is prohibited from acting during the pendency of the an appeal
through the United
States Supreme Court.
This A motion under the rule "is
essentially a plea for leniency and presupposes a valid
conviction. " (Poole v. United States, 250 F.2d 396, 401 (D.C. Cir. 1957), and United
v. Ellenbogen, 390 F.2d 537, 543 (2d Cir. 1968), cert. denied, 393 U.S. 918, 89 S. Ct. 241,
21 L. Ed. 2d 206 (1968), rehearing denied, 399 U.S. 917, 90 S. Ct. 2187, 26 L. Ed. 2d 576
(1970). A N.D.R.Crim.P. Rule 35 motion presupposes a valid
conviction only for purposes
of a hearing on that motion and does not preclude an appeal by a defendant from the
conviction. State v. Kottenbroch, 319 N.W.2d 465 (N.D. 1982). This plea for leniency
motion under this rule is addressed to the discretion of the sentencing
court , and may be
granted if the court decides that the sentence originally imposed, for any reason, was unduly
severe. (Wright, Federal Practice and Procedure: Criminal, § 586, p. 568
Ordinarily a court is not required to hear testimony or arguments on a motion for reduction
of sentence. This is discretionary with the court.
(Jacobsen v. United States, 260 F.2d
(8th Cir. 1958).) If the court does decide to reduce the sentence, the defendant need not
present nor need he be allowed to make a statement in his behalf before the reduced sentence
is imposed. (Wright, supra, § 586, pp. 570-571.) A motion for reduction
must comply with N.D.R.Crim.P. Rule 47, but in the case of pro se
requests by prisoners,
the court will entertain the request although contained in an informal letter from the prisoner
to the sentencing judge. (8A Moore's Federal Practice, ¶ 35.02(1), (Cipes, 2d Ed.
The clearest instance of illegality in a sentence is where the court imposes a sentence in
excess of the maximum term authorized under the statute violated. An excessive sentence
is void only as to the excess
, and is to be corrected, not by absolute discharge
of or new trial
for the prisoner, but by an appropriate amendment to the invalid sentence by the court of
original jurisdiction. (Wright, supra, § 582, p. 559.) A sentence by a
jurisdiction of the person and the offense committing a person to an authorized penal
institution but for a term in excess of what the law permits is not void as to the period of
lawful imposition, but void only as to the excess beyond that which could have been lawfully
imposed. (Waltman v. Austin, 142 N.W.2d 517, Syllabus ¶ 2 (N.D.
It should be noted that the period is not defined as the time in which the motion may be
made, but is rather the time in which the court may act.
Technically, this permits the
failure If a court fails to act upon a motion in the allotted time,
to preclude this precludes
relief. (8A Moore's, supra, ¶ 35.02(2).) It is not incumbent upon
the The trial court is
not required to state its reason for denying a motion for reduction of sentence.
Federal Practice and Procedure, § 586, p. 131 of 1971 pocket part, citing United States
v. Ursini, 296 F. Supp. 1152 (D.C. Conn. 1968).)
The clearest instance of illegality in a sentence is where the court imposes a
excess of the maximum term authorized under the statute violated.
This Rule Rule 35 was amended in 1978 pursuant to the
construction given it by the North
Dakota Supreme Court in State v. Rueb, 249 N.W.2d 506 (N.D. 1976). The decision and the
amendment , effective January 1, 1979, to require that notice of a motion for
reduction of sentence be given to the parties in accordance with N.D.R.Crim.P.
whether the court acts on its own motion or a motion filed by a party. If the court grants
relief under this Rule rule, it must give its reasons
therefor in writing.
The rule Rule 35 was amended in 1983,
effective September 1, 1983, to track amendments
to the federal rule creating two subdivisions and inserting a new sentence in subdivision (b)
providing that "changing a sentence from a sentence of incarceration to a grant of probation
constitutes a permissible reduction of sentence under this subdivision."
Subdivision (a) was amended, effective March 1, 2006, to add a new paragraph (2) giving the sentencing court discretion to correct a clear error in a sentence.
Subdivision (b) was amended, effective March 1, 1986, to follow the 1983 amendment to the federal rule and clarify that the sentencing court may reduce a sentence within 120 days after either the sentence is imposed or probation is revoked.
Rule 35 was amended, effective ______________, in response to the December 1, 2002, revision of the Federal Rules of Criminal Procedure. The language and organization of the rule were changed to make the rule more easily understood and to make style and terminology consistent throughout the rules.
SOURCES: Joint Procedure Committee Minutes of January 27-28, 2005, pages 31-32;
22, 1984, page 26; April 26, 1984, page 10; October 15-16, 1981, page 11; January 12-13,
1978, pages 9-11; October 27-28, 1977, pages 9-11; September 15-16, 1977, pages 26-27;
June 2-3, 1977, pages 11-12
. Joint Procedure Committee Minutes of ;
1972, pages 20-24; September 26-27, 1968, page 18; 18 U.S.C.A.,
Fed.R.Crim.P. 35 , page
119; Wright, Federal Practice and Procedure: Criminal, §§ 581-602 (1969); 8A
Moore's Federal Practice (Cipes, 2d Ed. 1971); Barron, Federal Practice and Procedure:
Criminal §§ 2301-2306 (1951); A.B.A. Standards for Criminal Justice, Standards
Relating to Sentencing Alternatives and Procedures, § 6.1 (Approved Draft,
Superseded: Former N.D.C.C. § 12.1-32-02(3). The current version of
subsection 3 of
12.1-32-02 is not superseded.
CONSIDERED: N.D.C.C. § 12-06-08, ch. 12-53 except section 12-53-15, which is superseded by N.D.R.Crim.P. 32; N.D.C.C. § § 12.1-32-06(2), 29-26-03, 29-26-05, 29-26-06, 29-26-07, 29-26-09, 29-26-10, 29-26-11, 29-26-12, 29-26-13, 29-26-14, 29-26-16, 29-26-17, 29-26-18, 29-26-20, 29-26-21, 29-26-22, 29-26-22.1, 29-26-22.2, 29-26-23, 29-26-24, 40-18-13.
CROSS REFERENCE: N.D.R.Crim.P. 47 (Motions); N.D.R.Crim.P. 49 (Serving and Filing Documents).